In Diorinou v. Mezitis, 237 F.3d 133 (2d Cir., 2001), the Supreme Court affirmed an order of the United States District Court for the Southern District of New York directing the respondent-father to return the children to Greece. The order was entered upon a petition filed by the children's mother, pursuant to the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C.A. ' ' 11601-10. Although the case was complicated by the issuance of conflicting custody awards made by the courts of Greece and New York, the Court concluded that the District Court correctly deferred to the Hague Convention ruling made by the courts of Greece in favor of Diorinou on the critical issue of whether she had wrongfully retained the children in Greece.

Mezitis, a citizen of the United States, and Diorinou, a citizen of Greece, were married in 1988. They had two children, Elias, born in New York in 1993, and Alexandra, in 1994. Both children, now seven and six, were dual citizens of the United States and Greece. The family lived in New York, except for summer vacations in Greece, at least until the beginning of the summer of 1995. At that time, the parties and their children flew to Greece for another summer vacation.

During the summer of 1995 , the marriage began to fall apart. Mezitis and Diorinou separately returned to New York at the beginning of September 1995, with the children remaining in Greece at the home of Diorinou's parents. Diorinou soon returned to Greece. The children, then ages twenty-three months and nine months, lived in Greece with their mother from the fall of 1995 until October 1, 2000. On that date Mezitis took possession of the children in Greece pursuant to his visitation rights under a Greek judgment awarding custody to Diorinou, and, without the knowledge or consent of Diorinou, brought the children back to New York, conduct that has given rise to the pending ICARA lawsuit.

The Second Circuit stated that in an ICARA suit a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim. The abduction claim is limited, initially, to a determination of whether the defendant has 'wrongfully removed or retained' the child; on this issue the plaintiff bears the burden of proof.

In the pending case, Diorinou contended that, in October 2000, Mezitis wrongfully removed the children from Greece, which she contended is their "habitual residen[ce]" within the meaning of Article 3 of the Convention. Mezitis contended that, in September 1995 and thereafter, Diorinou wrongfully retained the children in Greece, that their habitual residence at that time was (and, since then, is) New York, and that her prior wrongful retention precluded a finding that his subsequent removal of the children was wrongful.

The Court noted that under Article 3 of the Convention a "removal" or a "retention" is "wrongful" if

Article 12 requires the return of a child wrongfully retained or removed:

See also ICARA, 42 U.S.C. ' 11603(e)(1).

Article 13 provides defenses to an order for return:

See also ICARA, 42 U.S.C. ' 11603(e)(2)(A), (B).

The Convention contemplates that a person exercising custody rights over a child will use the remedies of the Convention (and its domestic implementing statutes) to redress the wrongful removal or retention of the child. Thus, in this case, when Mezitis believed that Diorinou had wrongfully retained the children in Greece in September 1995, he caused a Hague petition to be filed on his behalf in Greece. This litigation concerns Diorinou's Hague petition to return the children to Greece, in which she challenged what she alleged was the wrongful removal of the children by Mezitis from Greece to New York in October 2000.

Judge Stanton correctly began his analysis of the parties' competing contentions by focusing first on the issue of the children's habitual residence in October 2000, just prior to the removal by Mezitis that Diorinou is challenging in this proceeding. At that time, she had, and was "exercis[ing]" within the meaning of Article 3(b), custody rights granted her on January 30, 1998, by the Court of First Instance of Athens, in a decision affirmed on May 6, 1999, by the Court of Appeals of Athens. Although a further appeal is pending before the Supreme Court of Greece, Mezitis has not claimed, or attempted to establish, that the Greek custody award has been stayed. Thus, Mezitis's removal was in breach of her custody rights in Greece, and the removal was wrongful under Article 3(a) if Greece was then the children's habitual residence.

Mezitis contended, without dispute, that the children's habitual residence from their birth until the summer of 1995 was New York. He further contended that Diorinou wrongfully retained the children in Greece in September 1995 and that her wrongful retention cannot create habitual residence for them in Greece. In his view, their habitual residence continued to be New York. If that were so, his removal of the children in October 2000 would not be wrongful under Article 3(a) because Diorinou would not then be exercising custody rights under the laws of New York. The New York courts had awarded custody to Mezitis on November 17, 1997.

Focusing on the issue of the children's habitual residence in October 2000, Judge Stanton stated:

Judge Stanton recognized, however, that "Greece may not be [the children's] habitual residence if their original removal to Greece was wrongful, because a parent cannot create a new 'habitual residence' by the wrongful removal and sequestering of a child." The District Judge then noted that the Greek courts considering Mezitis's Hague petition had ruled that Diorinou's retention of the children in Greece in 1995 was not wrongful, and he felt bound to accord full faith and credit to those adjudications by virtue of section 4(g) of ICARA, 42 U.S.C. ' 11603(g). In addition, he noted that he "would in any event, as a matter of comity and res judicata, adopt the determination that the children were not wrongfully retained in Greece." Thus, the degree of deference due the adjudications of the Greek Hague petition became critical.

Though ultimately not decisive for the outcome, the second Circuit was in disagreement with Judge Stanton that section 4 of ICARA requires a federal or state court in the United States to accord full faith and credit to a Hague petition adjudication of another country. Section 4 of ICARA provides:

42 U.S.C. ' 11603(g). Section 3(8) of ICARA defines "State" to mean "any of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States." Although it might be possible to read "States" in section 4 to mean "Contracting States" (if the definition of section 3 were understood to define only the singular "State" and not the plural "States"), the legislative history clearly indicates that the word "States" in section 4 refers to the states of the United States.

Nevertheless, it pointed out that American courts will normally accord considerable deference to foreign adjudications as a matter of comity.

Mezitis contended that, because section 4 of ICARA limits full faith and credit deference to judgments of courts within the United States, it carries a negative implication that no deference is to be accorded foreign adjudications. The Second Circuit disagreed. It held that even if the limited scope of section 4 implies a legislative preference not to extend formal full faith and credit recognition to foreign judgments, there was nothing in ICARA or its legislative history to indicate that Congress wanted to bar the courts of this country from giving foreign judgments the more flexible deference normally comprehended by the concept of international comity. Although deference as a matter of comity often entails consideration of the fairness of a foreign adjudicating system, a case-specific inquiry is sometimes appropriate. A particular case may disclose such defects as to make the particular judgment not entitled to recognition. Although it had no reason to question the fairness of the Greek system of jurisprudence, the complicated sequence of litigation and the force of the parties' contentions warranted careful consideration of the determinations in Greece to which Diorinou asks the Court to defer.

Although the Court started out with an inclination to accord deference to the Greek Hague petition adjudications as a matter of comity, it was given pause by some aspects of those rulings. The courts' acceptance that Mezitis expressly agreed to let the children remain in Greece was troublesome. This finding rested solely on an affidavit of Diorinou's mother and is contradicted by his initiation of a custody proceeding in New York just one week after his return from Greece. It was also dubious about the Greek courts' upholding of an Article 13(b) defense to the children's return.

Despite these concerns, it saw no reason not to defer to the Greek courts' fundamental ruling that Diorinou's retention of the children in Greece in September 1995 was not wrongful, even if not expressly agreed to by Mezitis. Those courts reasonably found that Mezitis ignored the children during what was to have been the 1995 family summer vacation in Greece and stayed with his mother. At the end of the summer, he cancelled his ticket to return with one child on the flight for which Diorinou was to return with the other child, and did not inform Diorinou of his abrupt change of plans. She tried to return with the children on his flight, but could not get tickets. After she flew alone to New York, he refused her offer to return to Greece with her to bring the children to New York pending the divorce proceeding. Having found these circumstances, the Greek Hague petition courts made an entirely supportable determination that Diorinou had not wrongfully retained the children in Greece.

The Court= s deference to the Greek Hague petition rulings that Diorinou did not wrongfully retain the children in Greece in 1995 did not necessarily end its consideration of whether Mezitis's removal of the children in 2000 required an order for their return. The Convention contemplates that any wrongful removal (or retention) will be remedied by an order for return so that the issue of custody can be properly determined by a court of competent jurisdiction.

Considering first the New York custody award, we note that Article 17 of the Convention provides:

In the pending ICARA action, Judge Stanton faithfully heeded Article 17, neither denying an order for return simply because of the New York custody award nor failing to "take account of" that award. He noted that the New York custody award had resulted from "a one-sided and defective presentation." . As he pointed out, Diorinou was not present, and Justice Heitler was advised by Mezitis's counsel that there had been no final decisions with regard to any of the Greek proceedings, although the Greek Hague petition had already been denied, and the denial affirmed.

As to the Greek custody award, it had no bearing on the Greek Hague petition decisions by the Court of First Instance and the Court of Appeals of Thessaloniki, because the custody award came after those decisions.

Although it was troubled by the existence of conflicting custody awards from the New York and Athens courts, it saw no basis for declining to defer to the principal ruling in the Greek Hague petition litigation that Diorinou did not wrongfully retain the children in Greece in 1995. Thereafter, with custody validly awarded to Diorinou by the Athens courts, she was entitled to continue retention of the children in Thessaloniki and to seek an order requiring the children's return to Greece after Mezitis had violated her custody rights by wrongfully removing the children to New York.